Knot my problem

14 August, 2017
by: Cripps Pemberton Greenish

Japanese knotweed (“JKW”) is an invasive species which can cause physical damage to buildings and land.  It is very difficult to eradicate and affects the value of property, insurability and the ability to mortgage.

 

Until recently, it was considered that the owner of neighbouring land could not require the removal of the source of a JKW infestation from the defendant’s land.  Cases have only dealt with removal from the claimant’s land.  Now, the recent case of Williams and Waistell v Network Rail Infrastructure Limited (unreported Cardiff County Court judgment on 2 February 2017) has the potential to open the floodgates.

 

In this case, two bungalow owners brought claims against Network Rail (“NR”) for allowing JKW on NR’s land to spread to their properties.  The bungalows abutted the railway embankment owned by NR.  The embankment had been infested by JKW for 50 years which had persistently spread to the claimants’ land.  NR had been aware for some years that a danger was posed to the bungalows.  The claimants brought claims against NR in private nuisance.  Interestingly, the JKW had not damaged the foundations although it was claimed it had encroached onto them and prevented the ability to sell at proper market value.  The bungalow owners did not succeed in a claim for nuisance based on the encroachment, as physical damage had to be established.

 

However, the claim for nuisance by interference with the quiet enjoyment/use of the properties was successful.  The court held that if the ability to dispose of property at proper market value is infringed then that is a blight upon the property and there had been a nuisance for which damages could be awarded.

 

The court considered that NR did know or ought to have known the state of affairs giving rise to the nuisance and that damage was foreseeable.  Despite this, they had delayed treatment of the JKW on its land and when they did treat it was insufficient.  The court held their actions were not reasonable and NR were liable.

 

The court would not grant a mandatory injunction to require the defendant to eradicate the JKW on its land but did allow damages for diminution in value, to treat the claimants’ land and for general lack of amenity.

 

NR tried to claim to have a prescriptive right to cause that nuisance given that the JKW had been there for 50 years.  Although possible in principle, this failed as there was no evidence that there had been actual nuisance for over 20 years.

 

The case is important because it is the first decided claim for damages arising out of JKW on a neighbour’s land.  It also shows that there can be an actionable nuisance before physical damage is caused because of the effect on value of land.  It is now being appealed and so, if it is upheld by the higher courts, it may open the floodgates for neighbouring properties to JKW to bring claims, particularly those within 7m of JKW where mortgage lenders will not usually lend.

 

We’ll be keeping a watchful eye on the outcome of the appeal.